Welcome friends. Today’s post will assist you in understanding
the basic concepts of FEDERALISM in Indian Polity. It will help you to attempt
questions asked in various exams like
UPSC, State PCS, SSC, Railways, IBPS etc.
FEDERALISM
Political scientists have classified government
into unitary and federal on the basis of the nature of relations between the
national government and the regional government. A federal government is one in
which powers are divided between the national government and the regional
governments by the jurisdiction independently.
In a federal model, the national government is
known as the Federal Government or the Central Government or the Union Government.
•• The distribution of
powers is an essential feature of federalism. A federal Constitution
establishes the dual polity with the Union at the centre and the States at the periphery,
each endowed with the sovereign powers to be exercised in the field assigned to
them respectively by the Constitution. The one is not subordinate to the other
in its own field; the authority of one is co-ordinate with the other.
•• In the Indian federal
set-up, the Constitution divides powers between centre and states as:-
. Legislative
. Administrative
. Financial
LEGISLATIVE RELATIONS
•• Article 245 to 255
in part XI of the Constitution deals with the Legislative relation between the Centre & the
States.
•• Article 245(1) of the Constitution of India provides that the
Parliament has power to make laws for the whole or any part of territory of
India. This includes not only the States but also the UTs or any other area,
for the time being included in the territory of India. It also possesses the
power of ‘Extra-Territorial Legislation’ which no State Legislature possesses.
•• The State Legislature is
competent only to make laws for the whole or any part of the state to which it
belongs.
•• For certain UTs like
Andaman & Nicobar and Lakshadweep, regulations made by the President have
the same force as the Acts of the Parliament and such regulations may repeal or
amend a law made by Parliament in relation to such territory.
•• The application of Acts
of parliament to any Scheduled Area may be barred or modified by notifications
made by the Governor.
•• In distributing the
subject matters between Centre and states, our Constitution makers followed
Canadian scheme. However they added one
more list to it, Concurrent list. (GOI Act 1935 had 3 fold enumeration –
federal, provincial and concurrent) at present:
1. Union List – 100 subjects
2. State List – 61 subjects, originally 66
subjects
3. Concurrent List –52 subjects, originally
47 subjects
•• Subjects mentioned in the
Union List are of national importance and only Parliament
is competent to make laws on these subjects.
•• For State List, only the States have exclusive power to make
laws.
•• Concurrent list is a “Twilight Zone”, where both the Union and the states are
competent to make law, without any conflict.
•• Residuary powers
(Article 248): Parliament has exclusive power to make laws on the subjects not
enumerated in any of the lists (Entry 97 of Union List).
•• Wherever the conflict
arises as to a subject matter, the Union List predominates over the other
lists.
•• To determine whether a
particular enactment falls under one entry or the other, it is the pith and
substance of such enactment and not its legislative level that is taken account
of.
•• Colorable
Legislation – The motives of the
legislature are, otherwise, irrelevant for determining whether it has transgressed
the constitutional limits of the legislative power. This principle is based on
the maxim that you cannot do indirectly what you can not do directly.
•• Under Art 249, in the
national interest, Parliament has the power to make laws w.r.t. any matter
included in the State List, for a temporary period, if Rajya Sabha passes a resolution
supported by 2/3rd of the members present and voting in that respect.
•• Under the proclamation of
emergency, Article 250 empowers the Parliament to make laws for the whole or
anypart of the territory of India w.r.t.
all matters in the State List. Such a law however shall cease to effect on the
expiration of 6 months after the proclamation of emergency has ceased to
operate.
•• Under Article 252, if the legislatures of two or more
States pass a resolution to the effect that it is desirable to have a law
passed by Parliament on any matters in the state list common to these states,
Parliament can make laws in that respect.
•• Under Article 253, Parliament has power to make any law
for the whole or any part of the territory of India for implementing treaties
and international agreements and conventions.
•• Under Article 256, Parliament is empowered to make laws w.r.t.
all matters in the state list when there is failure of constitutional machinery
of the State under Article 356.
ADMINISTRATIVE RELATIONS
•• During the time of emergency Indian Constitution works like
a unitary government.
•• In normal times, there are constitutional provisions which
ensure the control of the union over the states. Some of the mechanisms are:
•• Power to appoint and dismiss the Governor (articles 155- 156),
power to appoint judges of HC, members of state PSC (articles 217, 317)
•• Article 256 provides that the executive power of the state
shall be so exercised as to ensure compliance with the laws made by the
parliament and executive power of the Union shall also extend to the giving of such
directions to a state as it may deem essential for the purpose.
•• Further article 257 provides that states must exercise
their executive power in such a way so as not to impede or prejudice the
exercise of the executive power of the Union in the state.
•• The powers of the Union Government also extend to giving directions
to a state in 2 specific matters:
1. Construction and maintenance of means of communication
which are declared to be of national or military importance.
2. Measures to be taken for the protection of the railway
within the states.
•• The Constitution prescribes and coercive sanction for the enforcement
of its directions through article 356.
Delegation of Union functions to the States
•• Under article 258 (1), Parliament with the consent of the state government can
entrust to it any matter falling with in the executive powers of the Union.
•• Under article 258(2) Parliament is empowered to use state machinery
for the enforcement of Union laws. For such purpose, it can confer powers or impose
duties on state functionaries.
•• Therefore under clause (1) delegation of power is made with
the consent of the state, whereas consent of the state is not necessary under
clause (2), and such delegation is done by the parliament by law. This implies that
parliament can interfere in the state administration, even without the consent
of the State.
•• State government has also the power to delegate its functions
to the Union and its officers. Article 258 (A) provides that Governor of the
state with the consent of GOI, entrust to the government, such functions to
which the executive power of State extends.
•• All India services are common to both the Union and the states.
The officers of these services are appointed and regulated by the Centre and
are placed in various states.
•• Grants in-aid (Article 275): Parliament has power to make such grants as it may deem
necessary to give financial assistance to any state which is in need of such assistance
(Article 275).
•• Under Article 263, President has power to establish Inter- State Councils.
These Councils have duty of inquiring into and advising upon disputes which
arises between the states. These councils also investigate and discuss the
subjects of common interest between the union and the States or between two or
more states.
. The President has so far established Central Council of
health, a Central Council of local self-government and a Transport Development
Council.
•• Parliament has power to constitute an Inter-State Commerce Commission (Article 307) and empower it to execute such functions as it
may deem fit.
•• Article 261 provides that full faith and credit shall be
given throughout the territory of India to public acts, records and judicial
proceedings of the Union and every state.
•• Article 261 (3) declares that final judgement or orders delivered
or passed by civil courts in any part of territory of India can be executed
anywhere in the country.
•• Article 262: Adjudication of disputes relating to waters of inter-state
rivers or river valleys. Article 262 (2) provides that parliament may by law
provide that neither the SC nor any other court shall exercise jurisdiction in
respect of any such dispute.
Financial Relations
•• Articles 268 to 293 in part XII deal with the
financial relations.
•• These relations are related to the distribution of taxes
as well as non-tax revenue and the power of borrowing.
•• Grant-in-aid forms an important part of centre-state
relations.
•• Parliament can levy taxes on the subjects enlisted in the List
- I (Union List) while the states can levy taxes on the subjects mentioned in
the State List. (List II).
•• There are no taxes on the subjects of the Concurrent List (List
III).
•• Finance Commission (Article 280) recommends to the President
on the distribution of net proceeds of taxes between the Centre and states.
IMPORTANT SUBJECTS IN VARIOUS LISTS
Union List (List I)
6. Atomic energy and mineral resources.
18. Extradition.
45. Banking.
47. Insurance.
48. Stock exchanges and futures markets.
49. Patents, inventions and designs; copyright; trade-marks and
merchandise marks.
69. Census.
85. Corporation tax.
97. Any other matter not enumerated in List II or List III including
any tax not mentioned in either of those lists.
State List (List II)
1. Public order.
5. Local government.
6. Public health and sanitation.
12. Libraries, museums and other similar institutions.
14. Agriculture.
21. Fisheries.
25. Gas and gas-works.
28. Markets and fairs.
61. Captivation taxes.
Concurrent List (List iii)
1. Criminal law.
2. Criminal procedure.
3. Preventive detention.
5. Marriage and divorce.
6. Transfer of property other than agricultural land.
7. Contracts.
13. Civil procedure.
14. Contempt of court, but not including contempt of the Supreme
Court.
17. Prevention of cruelty to animals.
20. Economic and social planning.
26. Legal, medical and other professions.
38. Electricity.
40. Archaeological sites.
Administration of Union Territories
There is no uniform system of administration in the union
territories. Parliament has been vested with the power to prescribe the
structure of administration in the various union territories. The
administrators of union territories are variously known as Lieutenant
Governors, Chief Commissioners or Administrators. In Daman and Diu and
Pondicherry, they are designated as Lieutenant Governors. In Andaman and
Nicobar Islands and Chandigarh they are known as Chief Commissioners and in
Lakshadweep as Administrator.
Similarly, some Union Territories possess Legislative Assemblies
and Councils of Ministers such as Daman and Diu, Pondicherry, and Delhi
(National Capital Territory), while others
do not. It may be noted that in Union Territories with
Legislative Assemblies, the right to legislate on subjects enumerated in the
State List and Concurrent List vests with the Assembly.
With respect to other union territories, the laws are
enacted by the Parliament. The administrators of the union territories enjoy the
right to issue ordinance within certain limitations. When the
legislatures of the union territories are dissolved or
suspended, responsibility for the peace, progress and good government of the
territory falls on the President.
Commissions for the Improvement of Centre-State Relations
There have been several efforts for the improvement of Centre-State
relations. Central Government have set-up many commissions to review and
examine the Federal Relations from
time to time, leading among them are :
1. Sarkaria Commission
Sarkaria Commission was set-up in June, 1983 by the Central
Government of India. The Sarkaria Commission’s charter was
to examine the relationship and balance of power between State and Central
Governments in the country and suggest changes within the framework of
Constitution of India.
The commission was so named as it was headed by Justice Rajinder
Singh Sarkaria, a retired Judge of the Supreme Court of India and other two
members of the committee were Shri B
Sivaraman and Dr SR Sen.
The Commission made 247 recommendations to improve Centre-state
relations.
2. MM Punchhi Commission
A Commission on Centre-State Relations was set-up
by the Government of India in April, 2007 under the
Chair manship of Madan Mohan Punchhi,
Former Chief Justice of India to look into the issues of Centre-State
Relations.
3. Inter-State Water Disputes
•• Article 262 of the Constitution envisages the
adjudication of inter-state water disputes which
make two provisions :
1. Parliament may by law provide for the adjudication of any
dispute or complaint with respect
to the use, distribution and control of waters of any inter-state
river and river valley.
2. Parliament may also provide that neither the Supreme
Court nor any other court is to exercise jurisdiction in respect of any such
dispute or complaint.
•• Under this provision, the Parliament has enacted two laws i.e. the River Boards Act of 1956 and the Inter-State
Water Disputes Act of 1956.
•• The River Board Acts, envisions the establishment of rivers boards for the
regulation and development of inter-state river and river valleys. The Inter-State Water Disputes Act empowers the federal
government (i.e. Central Government) to set-up an adhoc tribunal for the
adjudication of a dispute between two or more states in relation to the waters
of an inter-state river or river valleys.
Inter-State Water Dispute Tribunals:
Name
|
Year of setup
|
State involved
|
Krishna Water Disputes
Tribunal
|
1969
|
Maharashtra, Karnataka
and Andhra
Pradesh
|
Godavari Water Disputes
Tribunal
|
1969
|
Maharashtra, Karnataka,
Andhra
Pradesh, Madhya
Pradesh and
Odisha
|
Narmada Water Disputes
Tribunal
|
1969
|
Rajasthan, Gujarat,
Madhya
Pradesh and Maharashtra
|
Ravi and Beas Water
Disputes Tribunal
|
1986
|
Punjab and Haryana
|
Cauvery Water Disputes
Tribunal
|
1990
|
Karnataka, Kerala,
Tamil Nadu and
Puducherry
|
Second Krishna Water
Disputes Tribunal
|
2004
|
Maharashtra,
Karnataka and Andhra
Pradesh
|
Vansadhara Water
Disputes Tribunal
|
2010
|
Odisha and
Andhra Pradesh
|
Mahadayi Water
Disputes Tribunal
|
2010
|
Goa, Karnataka
and Maharashtra
|
Inter-State Councils:
•• The power of the President to set-up Inter-State Councils may
be exercised not only for advising upon disputes, but also for the purpose of
investigating and discussing subjects,
in which some or all of the States or the Union and one or more
of the States or the Union have a common interest.
•• In the exercise of this power the President has already constituted
the Central Council of Health, the Central Council of Local Self-Government,
the Central Council of Indian Medicine, the Central Council of Homeopathy the changing
role of Inter-State Council.
•• The Inter-State Council was set-up under Article 263 of
the Constitution of India in May, 1990. The
council charged with the duty of:
. inquiring into and advising upon disputes, which may have
arisen between states;
. investigating and discussing subjects in which some or all
of the States or the Union and one or more of the states, have a common
interest or
. making recommendations upon any such subject and in particular
recommendations for the better coordination of policy and action with respect
to that subject;
•• It shall be lawful for the President by order to establish
such a council and to define the nature of the duties to be performed by it and
its organisation and procedure.
Composition of Inter-State Council
The Composition of the Inter-State Council includes the Prime
Minister, Chief Ministers of all States, Chief Ministers of Union Territories having
Legislative Assemblies and Administrators
of Union Territories not having Legislative Assemblies, Governors
of states under President Rule, six Ministers of Cabinet rank in the Union
Council of Ministers’ to be nominated by the Prime minister and two Ministers
of Cabinet rank in the Union Council of Ministers to be nominated by the Prime
Minister permanent invites.
Duties of the Council
•• To investigate and discuss subjects of common interest.
•• Make recommendations for the better coordination of policy
and actions on such subjects; and
•• Deliberate on such matters of general interest to the
states referred by the Chairman to the Council. It shall have its own
Secretariat.
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